I have a new paper with this title. It argues that we have neglected the issue of essences in some of our fundamental legal concepts, with the result that our concepts are no longer cohering and can no longer serve the functions that we are asking of them. I focus on the concepts of “person” and “religion,” looking at tort theory and First Amendment law respectively, and also reflecting on what I call “the downward spiral of inessential legal concepts.” Here is the abstract.
While American law continues to use the terms “person” and “religion,” their meanings in different legal contexts suffer from a growing incoherence whose source is similar: a lack of essential attributes. An essential legal attribute is a characteristic without which something cannot be a member of a given legal category-in this case, the category of “person” or “religion.” Essential attributes are valuable because they make sense of the law and give coherence to its rules. They tell us what is centrally salient or decisive in the concepts the law employs, giving those concepts form, limits, and intelligibility. Concepts with no essences can become unstable over time and are perhaps even bound at some point to collapse.
I take one example from the law of torts and another from the law of religious freedom to illustrate that confusion about essential attributes in our legal concepts, and so the problem of potential incoherence, cuts across divides of both scholarship/doctrine and private/public law. I tentatively suggest some essential attributes of persons and religion that the law of torts and religious liberty, respectively, might adopt—the relational attribute of being able to inflict and suffer wrongs for the concept of a person in tort law, and the attribute of collective or group worship of a transcendent deity or force for the concept of religion in the law of religious freedom. Though there will be marginal cases that generate line-drawing debates, the mere existence of margins does not vitiate the need for legal essences.
But a problem is lurking. It turns out that the lack of essences in the legal concepts of person and religion is connected to the lack of essences in still other legal categories within these domains—for example, the concepts of “wrongdoing” in torts, or “worship” (or perhaps even “church” or “deity”) in the law of religious freedom, and probably more. This problem–the downward spiral of inessential legal concepts–together with broader resistance to essentialism in the law, may be so intractable as to render the prospects for re-introducing any legal essences into the law unlikely.
